Huff v. McDonald , 22 Ga. 131 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

The first two grounds of the demurrer were not insisted on.

The third, and only remaining ground, had been obviated by an amendment to the bill; an amendment by which the administrator of Atkinson had become a complainant in the bill. “

The objection to the admission in evidence, of the assignment made by Atkinson, was also obviated by this same amendment.

The first question, therefore is, upon the refusal of the Court, to charge as requested.

The first request was this; “ That if the plaintiff is entitled to recover anything, he is not entitled to recover interest.” Was the Court’s refusal of this request right ?

The plaintiff and defendants were tenants in common ; tenants in common of a piece of land containing a gold mine. The defendants alone worked the mine. They received from it a quantity of gold. This gold they used, delivering no part of it to the plaintiffs.

By the 27th section of the Act of the 4th of Anne, “for the amendment of the law and the advancement of justice,” it is amongst other things decl tred, that “actions of account may be brought” “by one joint tenant, and tenant in common, his executors and administrators, against the other, as bailiff, for receiving .more than comes to his just share or proportion, and against the executor and administrator of such joint tenant, or tenant in common.” Schley’s Dig. 330.

If, therefore, one tenant in common, receives more than his just share, he is to hold the surplus above his share, as bailiff, for the other tenant in common, and is as bailiff to account for such surplus to that tenant. This seems to be the meaning of the statute.

Is a bailiff liable to the payment of interest ?

“Bailiff or receiver to any man, &c. By this, &c., many things are implied, as that by bailiff is understood, a servant that hath administration and charge of lands, goods and chattels, to make the best benefit for the owner, against whom an action of account doth lie for the profits which he hath raised or made, or might, by his industry or care, have reasonably raised or made, his reasonable charges and expenses deducted.” Co. Lilt. 172, a

From this, it follows, that a bailiff is bound to pay his principal at least the actual profits, which he has made out out of the property which he holds as bailiff.

A tenant in common, who receives more than his share of the profits of the common property, holds the surplus as bailiff for his co-tenant, who, therefore, stands to him as his principal. He, consequently, is bound to pay his co-tenant the actual profits which he has made out of such surplus, as well as the surplus itself. See Docker vs. Somes, 2 Myl. & K.; 655, Stor. Eq. 465, 445.

Gold of the purity of that taken from this mine is, for all practical purposes, equivalent to money. The gold, therefore, received by the tenants, Huif and Chambers, may be treated as so much money.

Now the law by saying that a particular rate of interest shall be paid for the use of money, says, in effect, that profits arise from the use of money, and that these profits are to be deemed equal, not only to the interest on the money at that rate, but to such interest plus another sum sufficient to pay the person using the money, for his risk, care, trouble and expense, in using the money.

The tenants, Huff and Chambers, had the use of the surplus gold, if any, which they received fiom the mine. They admit that they used all the gold which they received from the mine.

It follows, that it is necessary to presume, in the absence of proof to the contrary, that they made profits on this surplus gold, and that those profits were at least equal to what would have been the interest on that gold, considering the gold as so much money.

Now what they were bound to accouut for was, as we have seen; this surplus gold, and the actual profits which they made on it.

What the Court told the jury they were bound to account for, was, the sulpus gold and the interest on it. This was in effect, merely making interest on the gold the measure of the profits made on the gold.

Interest, as we have seen, is really in the eye of the law, an inadequate measure of the profits of gold or money.

What the Court told the jury therefore, was at least as favorable to them, that is, the tenants, Huff and Chambers, as they had any right to expect.

[1.] The effect of the charge being, then, merely that the jury might consider interest as the measure of profits, and the charge being made in a case in which, by the absence of all proof as to what were the actual profits, there was no other measure of profits, the charge was free from error, at least, so far as Huff and Chambers were concerned.

It follows too, that if the requested charge had been given without explanation, it might have misled the jury. And therefore the Court was not bound to give it.

There is nothing in this conclusion adverse to anything contained in the 28th section of the Judiciary Act of 1799; a section which is as follows: “No verdict shall be received on any unliquidated demand where the jury have increased their verdict on account of interest, nor shall interest be given on any open account, in the nature of damages.”

It was never supposed that there was anything in this section to prevent a cestui que trust from recovering from his; trustee the actual profits, no odds how great, made by the-; trustee out of the trust property. Executors and administrators have had to account for the actual profits made by them out of the assets in their hands, be those profits as high as they might, just in the same way, and to the same extent, since the passage of the act containing this section as before its passage. And so it has been with all other like trustees. And a bailiff is, as we have seen, a servant or trustee like to these.

The next question relates to the statute of limitations and grows out of the charge on that subject refused, and the charge on that subject given.

At what time did the statute of limitations commence running against the plaintiffs ?

The defendants Huff and Chambers, as we have seen, received and held the surplus gold as bailiffs for the plaintiffs; as bailiffs having the “administration and charge” of the gold for the “ benefit” of the plaintiffs. In other words, the defendants were trustees of the gold for the plaintiffs; trustees entitled, at least, to the right, if not subject to the duty of administering, i. e. managing and using the gold for the benefit of the plaintiffs.

'This being so, there was the same sort of relation between 'them and the plaintiffs, that there is between an executor and the legatees, an administrator and the next of kin, a guardian and the ward. But the relation between these is such, that it prevents the statute of limitations from running until the executor, the administrator, or the guardian, as the case may be, has begun to hold adversely to his correlative, and knowledge of that fact has come to the correlative.

[2.] it follows, that the relation between these plaintiffs of the one part and the defendants of the other, was such as to prevent the statute from beginning to run in favor of the latter against the former, until the latter began to hold the gold adversely to the. former, and knowledge of that fact came to the former.

It is true, that in a case in the 4th of Iredell’s Eq. Rep. 1, the Court comes to a different conclusion; but the Court cites no authority for its opinion, and besides, seems not to have adverted to this peculiarity of the relation which, under the statute of Anne, exists between the tenant in common, receiving more than his just share, and his co-tenant.

We think, then, that the Court below committed no error with regard to the statute of limitations.

The bill prays for an account against the defendants separately, as well as jointly.

The Court was rigfht therefore, in refusing the third charge requested, and in giving the third charge given.

The evidence was conflicting; but we think, that there was at least as much in favor of the verdict, as against it.

The result is, that the exceptions must all be overruled, and the decisions excepted to, be affirmed.

Judgment affirmed